EXHIBIT 10(i)(5)
BANK OF AMERICA [Bank of America LOGO]
AMENDMENT NO. 4 TO LOAN AGREEMENT
This Amendment No. 4 (the "Amendment") dated as of November 26, 2002, is
among Bank of America, N.A. (the "Bank"), Xxxxxxxx, Inc. ("Xxxxxxxx"), Xxxxxxxx
Store I, Inc. ("Xxxxxxxx Store I"), Xxxxxxxx Store II, Inc. ("Xxxxxxxx Store
II"), Xxxxxxxx International, Inc. ("Xxxxxxxx International"), and Xxxxxxxx
U.K., Ltd. ("Xxxxxxxx UK") (Xxxxxxxx, Xxxxxxxx Store I, Xxxxxxxx Store II,
Xxxxxxxx International, and Xxxxxxxx UK are sometimes referred to collectively
as the "Borrowers" and individually as the "Borrower").
RECITALS
A. The Bank and the Borrowers entered into a certain Business Loan
Agreement dated as of June 1, 2000 (together with any previous amendments, the
"Agreement").
B. The Bank and the Borrowers desire to amend the Agreement.
AGREEMENT
1. DEFINITIONS. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. AMENDMENTS. The Agreement is hereby amended as follows:
2.1 Paragraph 1.1(a) of the Agreement is amended to read in its
entirety as follows:
"(a) During the availability period described below, the Bank
will provide a line of credit to the Borrowers. The
amount of the line of credit (the "Facility No. 1
Commitment") is Thirty Five Million and 00/100 Dollars
($35,000,000.00)."
2.2 Paragraph 8.9 of the Agreement is amended to read in its
entirety as follows:
"8.9 DIVIDENDS. Not to declare or pay any dividends on any of
its shares, except dividends payable in capital stock of the
Borrower, and not to purchase, redeem or otherwise acquire for
value any of its shares, or create any sinking fund in
relation thereto."
3. REPRESENTATIONS AND WARRANTIES. When the Borrowers sign this Amendment,
each Borrower represents and warrants to the Bank that: (a) there is no event
which is, or with notice or lapse of time or both would be, a default under the
Agreement except those events, if any, that have been disclosed in writing to
the Bank or waived in writing by the Bank, (b) the representations and
warranties in the Agreement are true as of the date of this Amendment as if made
on the date of this Amendment, (c) this Amendment does not conflict with any
law, agreement, or obligation by which any Borrower is bound, and (d) this
Amendment is within each Borrower's powers, has been duly authorized, and does
not conflict with any of its organizational papers.
4. EFFECT OF AMENDMENT. Except as provided in this Amendment, all of the
terms and
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conditions of the Agreement shall remain in full force and effect.
5. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which when so executed shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
6. FINAL AGREEMENT. THIS WRITTEN AMENDMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN AND AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN OR AMONG THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.
This Amendment is executed as of the date stated at the beginning of this
Amendment.
BANK OF AMERICA, N.A.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx, Vice President
XXXXXXXX, INC.
By /s/ Xxxxxxx Xxxxx
--------------------------------
Typed Name XXXXXXX XXXXX
-------------------------
Title EVP/CFO/COO
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XXXXXXXX STORE I, INC.
By /s/ Xxxxxxx Xxxxx
--------------------------------
Typed Name XXXXXXX XXXXX
-------------------------
Title EVP/CFO/COO
------------------------------
XXXXXXXX STORE II, INC.
By /s/ Xxxxxxx Xxxxx
--------------------------------
Typed Name XXXXXXX XXXXX
-------------------------
Title EVP/CFO/COO
------------------------------
XXXXXXXX U.K., LTD.
By /s/ Xxxxxxx Xxxxx
--------------------------------
Typed Name XXXXXXX XXXXX
-------------------------
Title EVP/CFO/COO
------------------------------
XXXXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx Xxxxx
--------------------------------
Typed Name XXXXXXX XXXXX
-------------------------
Title EVP/CFO/COO
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